You can now add to that list your friendly local ombudsperson. Complaints made to an ombudsman office about treatment by a long-term care facility are privileged under Welf. & Inst. Code § 9725, the Court of Appeal has held. Therefore, the plaintiffs in an elder abuse case were not entitled to see records of an ombudsman office represented by Cases@’s Founding Father. Without such a privilege, the court reasoned, people would be reluctant to report instances of elder abuse. [Download]

Under different names, the AFDC-Foster Care litigation has moved through state and federal courts for more than a decade in a dizzying variety of procedural contexts. The litigation, named for the lead recipient currently represented by LAFLA, seemingly culminated in a stunning victory five years ago. The Ninth Circuit, ruling in favor of foster care relative care-givers, struck down a federal interpretation of the AFDC-FC federal statute. State of California Dept. of Soc. Serv. v. Thompson, 321 F.3d 835 (9th Cir. 2003). (We’re not going into the substantive issue, which currently is understood only by the attorneys on the case and Judge Marsha Berzon, who wrote the 2003 opinion and the most current one.) But Congress amended the AFDC-FC statute in 2006 to overrule the Ninth Circuit interpretation.

This did not end the case, however. In 2004, the District Court had ordered DSS to review past cases over a six-year period and to pay back benefits where appropriate. When LAFLA attorneys discovered this apparently was not happening, they sought discovery, which DSS refused. The recipients went back to court to enforce the District Court’s compliance orders, while DSS sought relief from the judgment based on the 2006 amendment. The District Court ruled mostly in favor of DSS, and the recipients appealed.

The Ninth Circuit agreed with DSS that the 2006 amendment prospectively mandated lower benefits regardless of when a recipient entered the system. The Court of Appeals also held that DSS did not have to provide a Notice of Action to each recipient whose file was purportedly reviewed, unless DSS proposes to change the level of benefits.

Reportedly [we weren’t there], the judges appeared poised to toss out Rosales entirely until the DSS attorney at oral argument suggested that DSS didn’t have to comply with the 2004 judgment and had not done so. The Ninth Circuit drew the line there. The Court of Appeals reversed and remanded to the District Court to determine whether the recipients’ evidence of non-compliance was sufficient to justify post-judgment discovery. [Download]

As an Assemblyman (he is now in the House of Representatives), Berman sponsored legislation that became Labor Code § 98 et seq., which permits employees claiming unpaid back wages to resolve matters through a Labor Commissioner hearing. Though under well established case law courts normally would require anybody challenging an agency decision to have exhausted administrative remedies first, § 98 takes no chances. Section 98(f) expressly requires an employer attacking a Labor Commissioner order to go first to the Labor Commissioner.

But what happens if the employer claims it wasn’t notified of the proceedings until too late? The employer in this case contended that the first it heard there was a problem was when the employee noticed a post-judgment debtor’s examination on a $70,000 judgment for back wages. (Never mind that previous notices were sent by the Commissioner to the same address as was the examination notice, according to the undisputed evidence introduced by the employee.)

Apparently, that was not the first time in California history that employers have made such a claim because § 98(f) covers that situation as well. The statute says that even if the employer claims to be aggrieved “by want of notice,” it still must present that claim first to the Labor Commissioner, who must treat the claim like an application for relief from default under Code of Civil Procedure § 473. [Download]

Under Labor Code § 98 et seq., a worker, in what is called a Berman Hearing, may secure an administrative order requiring payment of back wages. In this case, in one such hearing, the Commissioner held that missed payments for meals or rest periods were penalties rather than wages – a ruling which disadvantaged workers – and declared that the ruling would be precedent for other hearings. The Court of Appeal held that the Commissioner did not have the power to issue precedent decisions in Berman Hearings. This means that if the Commission wants to make generally applicable rules it must issue regulations after public notice and opportunity to comment. (The underlying substantive dispute became moot after the California Supreme Court, in Murphy v. Kenneth Cole Productions, Inc., 40 Cal.4th 1094 (2007), sided with the workers and held that the payments in question were wages.)

The Court of Appeal, however, refused to order relief on the workers’ claim that the Commission was not processing claims within 90 days, as it is required to do. The court concluded there was insufficient evidence, but left open the possibility of relief in a future proceeding. [Download]

The Court of Appeal also held that the Agency could not bring a validation action to validate a “Settlement Agreement” with the Department of Housing and Community Development (HCD) to resolve a critical HCD audit of the Agency. The audit found that the Agency had short-changed its obligations to contribute 20% of its tax increment funds (money diverted from county government and other taxing agencies) to its low and moderate income housing fund. The Settlement Agreement compromised several of the HCD allegations. The Court of Appeal held that the Agreement was not the type of financial contract which the Legislature permits to be a subject of a validation action. [Download]

You can’t litigate these days without being hit by a stern Notice informing you that the opposing counsel will be out of town (like it’s your fault), and that you had better not try anything while counsel is gone. While initially devised to help sole practitioners with nobody to cover for them, the Notice has become a favorite of the not-so-tiny California Attorney General’s office, which has filed no fewer than seven of them in one of our cases. These Notices announce to counsel, to the court, and to the world: there is now a Litigation Timeout.

Not so fast, says at least one Court of Appeal division. Let’s review the obvious. First, the Notice does not trump a statutory deadline. Second, the Notice has no effect whatsoever on the court in which it is filed. “Nor [at least in the appellate courts] “is there any need for such a procedure.” So, at least in the Fourth Appellate District, Division Three (covering the OC), “a ‘notice of unavailability’ is not a fileable document under the rules of court and will be returned to counsel.”

While the decision does not preclude filing a Notice in the trial courts, the writing is on the wall, which will leave the insecure among you without a form. So, as a public service, we have devised a form letter to opposing counsel - or, if you prefer, e-mail, text, or podcast - as follows:

Dear [name of opposing counsel]:

I will be [on vacation] [in the hospital] [none of your business] from [choose range of dates, preferably fewer than six months], and nobody in my office [has the expertise to grasp the complexities of this litigation] [likes me]. Therefore, in my absence, please [don’t file ex parte applications every day] [crawl away].

Very truly yours,

[your name].

[Download]

The en banc panel majority, after an analysis of the ADA and Title VII provisions concerning “business necessity” and “bona fide occupational qualification” (BFOQ) standards, vacates the district court’s ruling and remands for reconsideration under its newly announced “business necessity” defense under the ADA. The majority agrees with UPS that the Title VII “BFOQ” standard should not be imported into the ADA, and the Court overrules its prior case law which adopted such a standard (Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001)). The issue of liability under the ADA, as well as under California’s FEHA statute, is remanded to the district court for a new analysis. [Download]